WHITEHEAD v. PARAMOUNT PICTURES CORP.

The opinion of the court was delivered by: Paul L. Friedman, District Judge.

OPINION

Plaintiff David L. Whitehead alleges that the film BAD
COMPANY the film MISSION: IMPOSSIBLE and the novelization of
the film MISSION: IMPOSSIBLE all infringe on the copyright of
his book Brains, Sex, & Racism, in the C.I.A. and the Escape.
He has sued a number of individual and corporate defendants
allegedly involved with writing, filming, producing or
distributing BAD COMPANY and MISSION: IMPOSSIBLE, and he seeks
to recover damages pursuant to the Copyright Act, 17 U.S.C. § 101,
et seq., and various common law tort theories.

The corporate defendants have moved for summary judgment,
arguing that Mr. Whitehead has failed to state a claim for
violation of the Copyright Act and that the various common law
claims either are preempted by the Copyright Act or fail to
state a claim. Defendants Time Warner Entertainment, Warner
Brothers, and Home Box Office also have moved to recover
attorneys' fees and costs pursuant to the Copyright Act.
See 17 U.S.C. § 505 Plaintiff responded by moving for discovery
pursuant to Rule 56(f) of the Federal Rules of Civil Procedure.

Mr. Whitehead's book, Brains, Sex, & Racism in the C.I.A. and
the Escape, is an autobiographical account of his seven years
with the Central Intelligence Agency and his foray into,
politics that followed. See Def. Walt Disney Co. Motion for
Summ.J., Exh.A (Copy of Brains, Sex, & Racism in the C.I.A. and
the Escape). Mr. Whitehead briefly describes his childhood and
his experiences as a college basketball player, Army reservist
and member of the Navy before delving into a detailed narrative
about his time at the CIA

In the book, Mr. Whitehead recounts that he began his work at
the CIA in Virginia in 1983 as a communications specialist, and
later worked as a computer operator. From the outset, he was
discontented at the CIA; he believed that many of his
supervisors and co-workers felt threatened by him because he is
an intelligent, athletic black man to whom many women, in
particular white women, were attracted. Brains, Sex, & Racism
gives detailed descriptions of the many women with whom Mr.
Whitehead had sexual relations or relationships or who he
thought were attracted to him From his descriptions, the women
cover a broad spectrum; they are African American, white and
Asian-American, lawyers, doctors, students and secretaries. All
are described as beautiful.

Mr. Whitehead asserts that he worked hard for the CIA and
performed his job extremely well, and he includes in the text
of the book copies of many laudatory notes that he received. He
nevertheless had a great deal of difficulty with other CIA
employees, and the CIA refused to give him promotions. For
instance, in July 1988, he was transferred to Chicago for a
two-year term to work for the Office of Personnel as a
recruiter. During his time in Chicago, he conducted interviews
at colleges throughout the Midwest to recruit minorities to
work for the CIA, but he says he experienced a great deal of
difficulty with his co-workers and the "establishment" at the
CIA. According to the book, he became ill from the stress of
that environment, and he appears to believe that someone may
have drugged the drinking water in his refrigerator. In 1989,
despite what he thought was exceptional work, Mr. Whitehead was
told that he was being removed from his assignment in Chicago
short of his two-year term, and he was told to return to the
Washington D.C. area. In January 1990, Mr. Whitehead decided
that he could no longer tolerate the racism and stress at the
CIA, and he submitted his resignation.

In February 1990, Mr. Whitehead undertook the "escape" of the
book's title. CIA officials called Mr. Whitehead into the
headquarters office for an emergency meeting and asked him to
surrender his badge and credentials. According to the book,
when he refused and instead ran out of the building, CIA
officials chased him and called for security. Mr. Whitehead ran
out of an emergency exit onto a ramp, and when he saw "security
coming close with an old white lady leading the pack," he
jumped off the ramp to the parking lot, got in his car and
drove away. Immediately after that incident, Mr. Whitehead
contacted several news agencies and newspapers about his story,
but according to the book, the people that he contacted were
afraid to pursue the story.

The book then goes on to describe Mr. Whitehead's foray into
politics, and his unsuccessful bid to become a shadow senator
for the District of Columbia. The book also details his contact
with and views on various political figures including Mayor
Marion Barry and Reverend Jesse Jackson.

After completing his book, Mr. Whitehead submitted it to the
CIA for preclearance, which he received. He obtained a
copyright for Brains, Sex, & Racism in the C.I.A. and the
Escape in April 1991. See Pl's Motion for Discovery and
Opposition to Motion for Summ.J, Exh.H. (Certificate of
Copyright). The book was published by Equality America Press in
1992.

B. Defendants' Works

1. BAD COMPANY

The film BAD COMPANY is described as a fictional
"edge-of-your-seat . . . sexy thriller." See Def. Walt Disney
Co. Motion for Summ.J., Exh.C. (Videotape Copy of BAD COMPANY).
The main character, Nelson Crowe (played by Laurence
Fishburne), is an African American former CIA agent
specializing in blackmail and bribery. Sometime before the film
opens, he had lost his position with the CIA for allegedly
stealing $50,000 that he was supposed to use to blackmail an
Iraqi colonel. Crowe swears that he delivered the money to the
colonel, but the colonel tells the CIA that he never received
it. As the movie opens, Crowe is hired by The Grimes
Organization, a for-profit company that hires former CIA agents
to conduct a variety of espionage and covert operations for its
clients. Victor Grimes (played by Frank Langella), the creator
of The Grimes Organization, originally envisioned it as a
"toolshed" or brain trust for former CIA operatives to use
their skills and training from the CIA to benefit private
clients. Most of the operations of The Grimes Organization are
managed by Margaret Wells, an attractive, blonde "master spy
and seductive manipulator" played by Ellen Barkin. See id.

Margaret Wells works with Crowe on his first assignment:
setting up and photographing a corporate CEO having sex with
his teenaged niece so that, the CEO will lose his position.
Crowe apparently completes the assignment to Wells'
satisfaction. Wells then attends a meeting between Victor
Grimes and the main client of The Grimes Organization at which
Grimes, Wells and the client decide to bribe a judge who has
significant gambling debts and who is sitting on a case with
major ramifications for the client.

Wells shows up at Crowe's apartment at 2:30 in the morning
and rouses him from sleep to tell him about the plan to bribe
the judge. She also tells Crowe that she wants to kill Victor
Grimes so that she can take over The Grimes Organization. She
promises Crowe half the control and profits of the organization
if he will help her eliminate Grimes. Crowe agrees. The two
then begin a passionate sexual relationship that continues
through much of the movie.

Back at The Grimes Organization, Crowe and Tod Stapp, another
African American former CIA agent employed by The Grimes
Organization, begin laying the groundwork for bribing the
judge. Victor Grimes gives Crowe a bag containing one million
dollars in bribe money. Crowe takes the bag, but instead of
immediately contacting the judge, Crowe detours to see his
former CIA supervisor, Agent William Smithfield ("Smitty"),
played by Michael Murphy, and it becomes apparent that Crowe is
still working with Smitty and the CIA.

The audience now learns that instead of firing Crowe for
allegedly stealing the money that he was supposed to deliver to
the Iraqi colonel, Smitty has used the allegations and the
threat of criminal prosecution to force Crowe to accept a most
difficult and dangerous assignment: to help him take over The
Grimes Organization so that the CIA can use the highly trained
operatives in Grimes' toolshed. Smitty has forced Crowe to
infiltrate The Grimes Organization to carry out this mission.
After Crowe tells Smitty of the plan to bribe the judge, Smitty
instructs Crowe to follow through with the bribe and then to
report back to Smitty for further instructions.

Crowe meets the judge, played by David Ogden Stiers, at the
home of the judge's lover, Julie Ames. Crowe tells the judge
that he will give him one million dollars if the judge will
vote a certain way on the case involving Grimes' client.
Otherwise Crowe threatens to go to the press and reveal that
the judge is heavily indebted with gambling debts. The judge
succumbs and accepts the money.

Meanwhile, Tod Stapp has discovered that Crowe actually is
operating as an agent of the CIA. Crowe tells Stapp of the plan
to eliminate Victor Grimes and to install Margaret Wells as the
head of The Grimes Organization. He tells Stapp that after
Grimes is eliminated, The Grimes Organization will become a
part of the CIA. He offers Stapp a place in the organization if
Stapp agrees to keep the plan and Crowe's work with the CIA
secret. Stapp agrees, and he and Crowe go to see Smitty. Smitty
instructs them to go back to the judge and bribe him to vote
the opposite way so that Victor Grimes' influence with his main
client will be undermined, making Grimes vulnerable. Crowe
agrees, but then changes his mind, apparently because he knows
that he and Margaret Wells are planning to kill Victor Grimes.

In the meantime, the judge has been overcome by guilt. After
giving the bribe money to his lover and instructing her to
deposit it in an account in her name, he commits suicide.
Margaret Wells then lures Victor Grimes on a trip, and Crowe
enters the house while Wells and Grimes are having sex and
murders Grimes. After seeing Grimes murdered, Wells appears to
have second thoughts, and she looks to Crowe apparently for
some compassion. But Crowe is concerned with covering up the
murder, and he beats Wells and ties her up to make it look as
though an intruder both beat her and killed Grimes.

After her release from the hospital, Margaret Wells takes
control of The Grimes Organization. Although she and Crowe
still are working together, their relationship has deteriorated
and she no longer trusts him. Shortly thereafter, Smitty visits
Wells in her office, tells her that the CIA has decided to take
control of The Grimes Organization, and asks her to run the
organization for the CIA. If she does not cooperate, he
threatens to criminally prosecute her for bribing the judge and
murdering Grimes. Smitty also instructs her to eliminate Crowe.

Wells immediately goes to Crowe's apartment. In the elevator
on the way up to Crowe's apartment, Wells sees the judge's
lover, Julie Ames, who has come to kill Crowe for his part in
the judge's death. Once both Wells and Ames are in Crowe's
apartment, Ames tries to shoot Wells and Crowe, but she misses
both of them. Wells and Crowe then grab their guns and
simultaneously shoot one another. Both are killed. Ames gathers
evidence of the CIA's involvement with The Grimes Organization
from Crowe's apartment and, as the movie closes, sends the
information to the United States Attorney's Office.

2. MISSION: IMPOSSIBLE

The film and the novelization Of MISSION: IMPOSSIBLE are
fictional, action-packed thrillers, loosely based on the old
television series about the Impossible Mission Force (IMF), a
team of highly-trained secret agents within the CIA.
See Def. Paramount Picture's Motion for Summ.J., Exh. 2
(Videotape COPY Of MISSION: IMPOSSIBLE); Exh. 4 (Copy of
Novelization of MISSION: IMPOSSIBLE). The latest mission of the
IMF is to film a spy named Golitsyn in the act of stealing a
list of the CIA's undercover agents from the United States
embassy in Prague. The team is told that the spy is stealing
the list to sell it to a shadowy Czech arms dealer named Max.
IMF leader Jim Phelps, played by Jon Voight, carefully briefs
the team on the assignment, and he warns them that if the list
is stolen and sold to Max, the lives of many undercover agents
will be lost.

The mission begins as planned, and the team films Golitsyn
stealing the list. As the mission unfolds, however, something
goes wrong. Master of disguise Ethan Hunt, played by Tom
Cruise, hears and sees the other members of' the IMF team
killed one by one. Through his wristwatch television, he
witnesses what he believes is Phelps' murder at the hands of an
unknown gunman. Golitsyn also is murdered, and Hunt realizes
that the list has been stolen.

Hunt calls his CIA supervisor and meets him so that they can
arrange Hunt's safe passage back to the United States. At that
meeting, Hunt learns that the mission was a "mole hunt," a
mission set, up to identify a traitor. The CIA had suspected
for some time that someone on the IMF team had been selling
secrets to Max, and it set up the mission to try to catch the
mole. The stolen list actually was a fake. As the sole known
survivor of the mission, Hunt realizes that the CIA thinks that
he is the mole. To avoid capture by CIA agents, he throws a
stick of explosive bubble gum and flees to the secret meeting
place of the IMF team.

Hunt realizes that the only way to clear his name and avenge
the deaths of his fellow agents is to capture and expose the
real traitor. As Hunt tries to think of a way to make contact
with Max, Claire Phelps (played by Emanuelle Beart), a member
of the ill-fated IMF team and the wife of team leader Jim
Phelps, shows up at the meeting place. She also has survived
the ill-fated mission, and she tells Hunt that she wants to
help him avenge the deaths of the other team members.

Hunt makes contact with and meets Max, provocatively
portrayed by Vanessa Redgrave. He convinces her that the list
of undercover agents that she bought from the mole is phony.
Max agrees that she will reveal the traitor's identity if Hunt
will provide her with the real list. Hunt concocts a scheme to
steal the genuine list of agents from the only place it exists:
a high-security computer room in the CIA's Langley, Virginia
headquarters. He recruits a team of other disavowed CIA agents
to conduct this mission, including Claire Phelps. The team
successfully executes an intricate plan to gain access to the
high-security room and download the list. Hunt and his team
then travel to London to meet Max.

Once in London, Phelps, the team leader of the ill-fated
Prague mission whose murder Hunt thought he had witnessed,
contacts Hunt. Phelps tells Hunt that the head of the CIA's
covert operations is the traitor, but Hunt realizes that Phelps
in fact is the IMF traitor. In the final scene, Hunt and his
team are on a speeding train traveling from London to Paris.
They meet Max there and give her a list of agents, but they use
computer technology to frustrate her ability to access the
list. Max tells Hunt that the traitor is on the train. As Hunt
prepares to confront Phelps, the traitor, he discovers that
Phelps' wife Claire, who has been working with Hunt's team of
disavoweds ...

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